Some notes on Winnifred Fallers Sullivan’s THE IMPOSSIBILITY OF RELIGIOUS FREEDOM

Page numbers refer to Winnifred Fallers Sullivan, The Impossibility of Religious Freedom, Princeton University Press, 2018.

Professor Winnifred Fallers Sullivan of Indiana University holds both a J. D. and a Ph.D in Religious Studies from the University of Chicago. In the 1990s, she testified as an expert witness in a case brought against the city of Boca Raton, Florida. Professor Sullivan testified in support of the plaintiffs’ claim that the ordinances specifying the kind of grave markers that could be used in Boca Raton’s municipal cemetery infringed their right to practice religion as articulated in Florida’s Religious Freedom Restoration Act.

Professor Sullivan quotes (page 108) an early brief that the city’s attorneys filed in their defense of the ordinances, in which they “slipped into the habit of discussing whether the religion itself was burdened by the state, rather than whether each plaintiff’s ‘exercise of religion’ was substantially burdened” (109.) This habit, coupled with some peculiarities in the language of the statute, “attributed legal agency to the religious traditions. It brought the religions themselves into the courtroom as actors- actors who were incarnated- or not- in the various objects in the cemetery” (108.) This odd puppet show resulted in a trial in which counsel, witnesses, and judge consistently failed to understand each other. The city’s counsel spent a considerable portion of his examination of the plaintiffs trying to prove that they were not faithful adherents of the religions they professed (127) and the judge showed no deference to any form of learning brought by the various expert witnesses (133.)

Considering that “the religious traditions” (Christianity, Judaism, etc) are vast abstractions, it is little wonder that treating them as if they were the litigants in the case was so unproductive. The defense was “almost hysterical” (104) in its belief that a religious freedom jurisprudence focused on the particular claims of actual individuals with standing to sue would dissolve into anarchy, and the judge does not seem to have considered such an approach. For her part, Professor Sullivan doesn’t seem to think anarchy would be all bad. She cites approvingly Farewell to Christendom by Thomas Curry (143f.) Curry argues for a revolutionary conception of religious freedom, a “utopian challenge of radical freedom, a freedom that depends in no way upon government.” I’m no expert, but maybe before we commit to anarchism the courts could spend some time considering the particular claims that specific litigants bring before them concerning their own legally enforceable rights.

Professor Sullivan also recommends (158) John Bowen’s 2003 book Islam, Law, and Equality in Indonesia, a study of the interactions among three quite distinct legal systems: Islamic law, customary law, and the laws of the Republic of Indonesia.

As the title of her book would suggest, Professor Sullivan’s conclusion is that the USA’s system of jurisprudence is not competent to guarantee any special protections to religious practice (150-159.)

I would be inclined to go further than she does in this connection. My idea is that, while other freedoms can be defined in terms of the social system that exists in a given country at a given time, religion is not thus definable. Economic freedom is meaningful only in terms of the ability to act within a given system to acquire and retain the the goods and services that are of value to the people who live under that system; political freedom is meaningful only in terms of the ability to influence the existing political system so as to advance one’s interests; etc. There is, however, no rational principle we can turn to that will tell us which practices, objects, attitudes, statements, and organizational patterns the various religions that may arise within a community will decide are of importance. The range of possible sacred duties, as for that matter the range of possible intolerable blasphemies, would seem to be infinite, if not absolutely unbounded in all directions.

If this is so, it would indeed be impossible for courts to do very much to ensure religious liberty. Courts apply rules, and where there are no general principles there can be no application of rules. If we are to have a pluralistic society in which it is up to individuals to decide what practices they will or will not engage in, what objects they will or will not venerate, what attitudes they will or will not adopt, what statements they will or will not make, and what organizations they will or will not join, and if we are not to resort to a utopian anarchism, it would seem that the electorate and its representatives in the legislative bodies will have to pay attention each time individuals speak up about the religious significance they find in a given practice, object, attitude, statement, or organization, and will have to decide whether and how to adapt public policy to the interests of those individuals in regard to that point.

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